Judgment:
1. The applicant was an employee of Railways working under the respondent No. 2 as Sub Overseer Horticulture. He retired from service on 31.12.1996 as Head Horticulture Inspector. The pension and other retrial dues were sanctioned to him and he has stated that he received the same without any anomaly and he was satisfied.
2. It has further been stated by the applicant that on the basis of recommendations of 5th Pay Commission, the pay and allowances was revised from 1.1.1996. The order was, however, issued after the applicant had already retired from service in the year 1998 and as a result of revision, the retiral benefits of the applicant had been calculated afresh. The respondents found that the dues as arrears would be 46125/-, but at the time of payment, the respondents deducted Rs. 14544/- from the dues without assigning any reason. Later, it came to the notice of the applicant that this deduction was made by the respondents for the alleged reason that the applicant had not returned all the equipment and tools which were given to him for discharging the duties of Horticulture Inspector. Particularly the lawn mower, which was given to him for his work, was not returned to him, therefore, the cost of this was deducted from the arrears, which was payable to the applicant.
3. The applicant is aggrieved of the order for the reasons that he was not asked for any explanation in this matter before taking any decision to deduct the amount. It has been stated by the applicant that his retiral benefits were paid in full on the basis of 'No Objection Certificate' which was issued in his favour by the Assistant Engineer, Northern Railway on 18.2.1997. He has attached the same as Annexure No.I at page 17 of the O.A. in which it was mentioned that no equipment or tools was returnable by him. The applicant is further aggrieved that the respondents did not provide him any opportunity for showing the reasons why this amount should not be deducted. He has stated that the department have no evidence to show that it was issued to him. As per Annexure-2, which was a representation of the applicant before the G.M.Electrification, Allahabad, he had stated that whenever any articles is issued to any official, a note is made in the tool register with proper remark and signature of the person who takes him the same in his custody and if and when the tools is taken outside the office, the gate pass is issued which authorizes the person to take the machine outside.
So, in his case, it has been stated by the applicant, neither there was any evidence of lawn mower having been issued, nor was there any evidence that it was taken by him outside the office. More-over periodontal , further a note is prepared by the Inspector concerned of the material which has been issued, but not returned. From the year 1987 till his retirement, there was no mention of articles so issued by the Inspector Incharge, but not returned. With these factual information, the applicant had requested the G.M. Electrification to consider his case favourably and pay him the dues in full.
4. The applicant has also shown Annexure -3, which is subsequent representation before the G.M. Electrification dated 6.4.98. Here also, the applicant had stated that no supporting document for issuing of any article to him could be produced by the respondents. The allegation, therefore, was not substantiated and the applicant requested the G.M.to consider his case favourably. It has further been stated by the applicant that his representations were not replied to.
5. With these submissions, the applicant has prayed for issue of direction to the respondents to pay back the amount of Rs. 14544/- which was deducted alongwith compound interest at the suitable rate. He has also asked for a direction to the respondents to produce the relevant records to prove that such tools was issued to him and not returned. It is, however, observed that both the prayers cannot be prayed together. If the direction for paying the deducted amount is issued, the other relief becomes ir-relevant and redundant.
6. Countering the allegations made by the applicant, the respondents have drawn my attention towards para 5 and onwards of the Reply. It has been stated by the respondents that when shortage of tools was noticed, the Chief Inspector of Works was asked to conduct to enquiry into the matter and after investigation it was concluded that the applicant was responsible as he had taken the lawn mower & items such as bucket etc.
It has been stated that lawn mower was taken by the applicant on 17.10.1989 and this fact was corroborated by three other workmen who were associated with the work of handling the machines. The statements of these three persons which were in the form of questions-answers have been given as Annexure to the Counter Affidavit.
6. A specific question was asked from the learned counsel for the respondents that if the investigation was carried out in the year 1992 when the applicant was already in service and if there was such piece of evidence to show that the tools was issued to him, why was he given 'No Objection Certificate' and why his dues were paid in full. In reply, the learned counsel for the respondents says that 'No Objection Certificate' on the strength of which the retrial benefits were given was not issued by the department in which the applicant was issued this particular tool. He worked there upto May, 1990 and thereafter got transferred. The applicant was given No objection Certificate' in the department in which he was then working and, therefore, this does not reflect the correct position.
7. This is to my mind is not acceptable explanation. Whenever an official gets transferred from the department to another, it is the responsibility and duty of the department from which he gets transferred to convey to the department to which he is going whether there are any dues from the official. If it was no so, it would be immensely difficult for the Government to sanction the retrial benefits to any employee because of that situation. If No Objection Certificate has to be obtained from all the departments and branches in which the official had worked before his retirement, it would become an. This is impossible preposition and, therefore, the retrial benefits are settled on the basis of 'No Objection Certificate' of the Section in which he worked last. This is the practice and this plea of the respondents is not tenable. If any error was committed by the department at the time of granting retrial benefits, the responsibility may have to be fixed on the persons who were responsible.
8. The learned counsel for the applicant has also called into question the correctness of the deposition of witnesses as given in the Annexures to the Counter Affidavit. These were people who worked in the section which keeps in its custody equipments and tools and prepare accounts of the stock. It is quite likely that these persons will be trying to pass the responsibility to some persons to safe their skin as there was no other record with which they could satisfy that the equipment was actually issued to the applicant. Therefore, these are not sufficiently reliable material to prove the charge against the applicant that he had received the tools, but failed to return it before his retirement.
9. The learned counsel for the applicant has also stated that even if for the sake of argument, the machine was issued to him and they were not able to track its subsequent disposal, atleast an opportunity of hearing should have been provided to him to offer his point of view and give statement of factual position. However, he was not granted any such opportunity and all of a sudden this recovery was made. If the respondents point of view that they paid the amount of retrial dues erroneously is accepted, then it has also to be accepted that the applicant was not responsible for such error. In such situation, the respondents should have been careful to check and if anything was outstanding against the applicant before they set about the work of calculating the items and paying and, therefore, the applicant cannot be held responsible in the matter. He has also referred some decisions of the Apex Court on the subject.
10. Having gone through the pleadings and having heard the counsel for the parties and perused the papers, I have applied my mind to the relief prayed for by the applicant. The respondents ' action in making recovery all of sudden without granting any opportunity, that too after a lapse of several years since he relinquished the charge from the department, in question, is open to many questions. The plea taken by the respondents is that 'No Objection Certificate' issued by the Section where he was working at the time of retirement cannot be relied upon. If somebody made a mistake, then the responsibility should have been fixed by the respondents and if there was any loss to the Government, it could have been recovered from the people responsible.
The investigation to which the respondents have referred does not appear to be full proof. The persons who have been interrogated also appears to be people, who could have given statement under certain compulsion. They were the people who were responsible for keeping custody the tools and machines and accounting for those. If they had committed any mistake by not keeping the record of tools having been issued to the applicant, naturally they would be trying to evade the responsibility. Therefore, to what extent, their statement could be relied upon is also open to the question.
11. For the reasons mentioned above, the O.A. succeeds and is allowed.
The respondents are directed to refund Rs. 14544/- with simple rate of interest as applicable to G.P.F. When the O.A. was filed, the N.C.R.was not created. Now, the Division falls under the N.C.R., therefore, the direction is issued to the D.R.M., N.C.R., Allahabad and not to D.R.M., N.R., Allahabad. This should be done within a period of three months from the date of certificate copy of this order is received by the respondents. No costs.